Laurent v. New Orleans City et al

Filing 123

ORDER & REASONS: granting #87 Defendant General Electric Company's Motion for Summary Judgment; granting #88 Defendant CBS Corporation's Motion for Summary Judgment, and granting #89 Defendant Foster Wheeler, LLC's Motion for Summary Judgment; FURTHER ORDERED that GE's, CBS's, and Foster Wheeler's Motions for Leave to File Reply (Rec. Docs. 110, 111, 112) are DENIED as moot. Signed by Judge Carl Barbier on 9/9/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SCOTT LAURENT

CIVIL ACTION

VERSUS

NO: 14-2022

NEW ORLEANS CITY, ET AL.

SECTION: “J” (5)

ORDER & REASONS

Before the Court are Defendant General Electric Company’s
Motion for Summary Judgment (Rec. Doc. 87) and Plaintiff Scott
Laurent’s

opposition

thereto

(Rec.

Doc.

99),

Defendant

CBS

Corporation’s Motion for Summary Judgment (Rec. Doc. 88) and
Plaintiff’s opposition thereto (Rec. Doc. 103), and Defendant
Foster Wheeler, LLC’s Motion for Summary Judgment (Rec. Doc. 89)
and Plaintiff’s opposition thereto (Rec. Doc. 105).
Also before the Court are Motions for Leave to File Reply
by GE (Rec. Doc. 111), CBS (Rec. Doc. 110), and Foster Wheeler
(Rec. Doc. 112). Having considered the motions and memoranda of
counsel, the record, and the applicable law, the Court finds
that Defendants’ motions for summary judgment should be GRANTED
for the reasons set forth more fully below.

FACTS AND PROCEDURAL BACKGROUND
This litigation derives from the December 10, 2013, death
of Plaintiff’s father, Frederick Laurent (“Mr. Laurent”), after
he contracted mesothelioma as a result of exposure to asbestos.
(Rec. Doc. 1.) Mr. Laurent allegedly was exposed to asbestos
while working for the City of New Orleans’ brake tag station
from 1958 until 1986; at Gentilly Racing’s Fair Grounds from
1970 to 1977; and as a member of the United States Naval Reserve
in the 1950s and 1960s. (Rec. Doc. 1, Ex. B, ¶¶ VI-XXXIX; Rec.
Doc. 50, p. 2.)
Plaintiff alleges that Mr. Laurent was exposed to asbestoscontaining

products

manufactured

by

Defendants

GE,

CBS,

and

Foster Wheeler, among others. (Rec. Doc. 1, Ex. A, ¶¶ XXVIXXVIII, XXXV-XXXVIII.) Plaintiff brought his wrongful death and
survival action in Louisiana state court against GE, CBS, Foster
Wheeler, and others on July 24, 2014. (Rec. Doc. 1, Ex. B.) The
case was removed to this Court on September 4, 2014. (Rec. Doc.
1.) This Court denied Plaintiff’s motion to remand on October
23, 2014. (Rec. Docs. 17, 32.) On August 14, 2015, Defendants
GE, CBS, and Foster Wheeler each filed a Motion for Summary
Judgment (Rec. Docs. 87, 88, 89).

Plaintiff opposed the motions

on September 1, 2015. (Rec. Docs. 99, 103, 105).
2

PARTIES’ ARGUMENTS
Defendants

GE,

CBS,

and

Foster

Wheeler

argue

that

Plaintiff’s evidence is insufficient to establish Mr. Laurent’s
exposure

to

Defendants.

asbestos-containing
Plaintiff

argues

products

that

he

has

manufactured
supplied

by

enough

evidence to create genuine issues of material fact as to whether
Mr.

Laurent

was

exposed

to

asbestos-containing

products

manufactured by Defendants.

LEGAL STANDARD
Summary

judgment

is

appropriate

where

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing former Fed. R.
Civ. Proc. 56(c)). The moving party bears the initial burden of
demonstrating to the court that there is an absence of genuine
factual issues. Id. Once the moving party meets that burden, the
non-moving

party

must

go

beyond

the

pleadings

and

designate

facts showing that there is a genuine issue of material fact in
dispute. Id. “A factual dispute is ‘genuine’ where a reasonable
jury could return a verdict for the non-moving party. If the
3

record, taken as a whole, could not lead a rational trier of
fact to find for the non-moving party, then there is no genuine
issue

for

trial

and

summary

judgment

is

proper.”

Weber

v.

Roadway Exp., Inc., 199 F.3d 270, 272 (5th Cir. 2000) (citations
omitted).
The non-moving party’s burden “is not satisfied with ‘some
metaphysical doubt as to the material facts,’ by ‘conclusory
allegations,’
‘scintilla’

by
of

‘unsubstantiated
evidence.

assertions,’

[The

courts]

or

by

resolve

only

a

factual

controversies in favor of the nonmoving party, but only when
there is an actual controversy, that is, when both parties have
submitted evidence of contradictory facts. [The courts] do not,
however, in the absence of any proof, assume that the nonmoving
party could or would prove the necessary facts.” Little, 37 F.3d
at 1075 (emphasis in original) (citations omitted).

DISCUSSION
To prevail in an asbestos case in Louisiana, a plaintiff
must establish by a preponderance of the evidence that (1) the
claimant was exposed to asbestos from the defendant’s product
and (2) the exposure substantially caused the claimant’s injury.
Lucas v. Hopeman Bros, Inc., 2010-1037, p. 14 (La. App. 4 Cir.
2/16/2011);

60

So.

3d

690,

699-700.
4

The

plaintiff

bears

the

burden of proving these two facts, and proof can be made by
direct

or

circumstantial

evidence.

Vodanovich

v.

A.P.

Green

Indus., Inc., 2003-1079, p. 5 (La. App. 4 Cir. 3/3/2004); 869
So. 2d 930, 933-34. A possibility or “unsupported probability”
is

not

sufficient

to

support

a

judgment

in

the

plaintiff’s

favor. Id. at 934. The plaintiff must establish his claim to a
reasonable certainty. Id.
The

claimant

must

show

“significant

exposure”

to

the

defendant’s asbestos-containing products. Lucas, 60 So. 3d at
700.

In

asbestos

cases,

“exposure”

refers

to

“inhalation

of

asbestos fibers into the lungs.” Abadie v. Metro. Life Ins. Co.,
00-344, p. 69 (La. App. 5 Cir. 3/28/2001); 784 So. 2d 46, 93.
The plaintiff can show “significant” exposure by demonstrating
that

the

claimant

actively

worked

with

asbestos-containing

materials. See McAskill v. Am. Marine Holding Co., 2007-0617, p.
14

(La.

summary

App.

4

judgment

Cir.

2/20/2008);

stage,

the

9

So.

plaintiff

3d
must

264,

268.

submit

At

the

specific

evidence showing potential exposure to the defendant’s asbestoscontaining

products

in

order

to

create

a

genuine

issue

of

material fact. See Thibodeaux v. Asbestos Corp., Ltd., 20071445, p. 14 (La. App. 4 Cir. 2/20/2008); 976 So. 2d 859, 867.
Evidence of the physical presence of the defendant’s asbestoscontaining products at the claimant’s place of employment is
5

insufficient to find liability or defeat the defendant’s motion
for summary judgment. Id.
After

demonstrating

defendant’s

that

the

was

products,

asbestos-containing

claimant

exposed

the

to

plaintiff

the
must

show that the product was a substantial factor in causing the
claimant’s injury. As Louisiana courts have recognized, medical
science has demonstrated a causal relationship between asbestos
exposure and mesothelioma. McAskill, 9 So. 3d at 268. Any nontrivial exposure to asbestos constitutes a substantial factor
and a cause of mesothelioma. Id. Thus, the first element of the
plaintiff’s claim, exposure, collapses into the second. If the
plaintiff

is

unable

determine

whether

to

the

show

exposure,

exposure

was

a

there

is

no

substantial

need

to

factor

in

causing the injury.
In Thibodeaux, the Louisiana Fourth Circuit Court of Appeal
discussed the evidence necessary to prove substantial exposure
at the summary judgment stage. 976 So. 2d at 863-87. The court
referred

to

its

earlier

decision

Refining,

Inc.

as

an

example

exposure.

Id.

at

863-65;

of

see

in

Grant

v.

sufficient
2006-1180

American

evidence

(La.

App.

Sugar

to

show

4

Cir.

1/31/2007), 952 So. 2d 746. In Grant, the plaintiff alleged that
he contracted mesothelioma after he was exposed to his father’s
asbestos-covered work clothes. 952 So. 2d at 747.
6

In support of

his

contentions,

the

plaintiff

submitted

evidence

of

his

father’s employment at the facility in question during the time
the

defendant

installed

insulation

potentially

containing

asbestos. Id. at 749. Also, the plaintiff submitted depositions
establishing that the defendant’s products contained asbestos.
Id. at 750.
In contrast, the Thibodeaux court found that the plaintiffs in
that case failed to establish substantial exposure. 976 So. 2d
at

867.

The

plaintiffs

asbestos-containing
they

failed

to

alleged

products

supply

any

to

that
the

the

defendant

claimant’s

evidence

that

the

supplied

workplace,

but

employer

used

asbestos during the claimant’s employment or that the claimant
was

actually

reveal

any

exposed
specific

to

asbestos.

dates

on

Id.

which

The
the

evidence
employer

did

not

purchased

asbestos-containing products from the defendant or whether those
dates coincided with the plaintiff’s employment. Id. Thus, the
court found that the plaintiffs failed to defeat the defendant’s
motion for summary judgment because the defendant was able to
demonstrate a lack of factual support for their claim. Id. at
867-68.
Plaintiff’s evidence falls short of the level required by the
Fourth Circuit in Grant. Plaintiff relies on the expert report
of

Laurence

Durio,

who

opined
7

that

Mr.

Laurent

was

likely

exposed to asbestos while working on Navy ships and possibly in
Navy schools. (Rec. Doc. 99, Ex. 4.) As a fireman apprentice,
fireman,

and

machinery

repairman,

Mr.

Laurent

worked

in

the

ship’s “mechanical spaces” and was responsible for repairing and
operating

boilers,

turbines,

and

related

equipment.

Id.

The

expert report states that the Navy “had a strong preference” for
amosite asbestos, and it suggests that Mr. Laurent was exposed
to

this

potent

form

of

asbestos

while

working

on

boilers,

turbines, and the like. Id.
Plaintiff also relies on the Declaration of Faye Pace, Mr.
Laurent’s former wife. (Rec. Doc. 99, Ex. 2.) The declaration
states that Mrs. Pace visited a ship’s engine room with her
husband, who told her that he worked there when he was on duty.
Id. Finally, Plaintiff states that he propounded discovery on
GE, CBS, and Foster Wheeler, asking Defendants to admit whether
they supplied machinery containing asbestos to the Navy. (Rec.
Docs. 99, 103, 105). Defendants have yet to respond to these
discovery requests. Id.
Plaintiff’s evidence is insufficient to establish exposure to
asbestos-containing products manufactured by GE, CBS, or Foster
Wheeler.

Even

machinery

to

the

if

Defendants

Navy,

Plaintiff

supplied
failed

asbestos-containing
to

produce

evidence

showing that Mr. Laurent was exposed to such machinery during
8

his employment. Evidence that Mr. Laurent worked in a ship’s
engine room and “mechanical spaces” does not show that he more
probably

than

not

worked

on

machinery

manufactured

by

Defendants. Plaintiff has not produced evidence showing that Mr.
Laurent inhaled asbestos fibers from Defendants’ products into
his lungs. As in Thibodeaux, Plaintiff failed to adduce evidence
showing

when

Defendants

supplied

machinery

to

the

claimant’s

employer and whether the claimant’s employment coincided with
those dates. Therefore, Plaintiff’s evidence is insufficient to
defeat

GE,

CBS,

and

Foster

Wheeler’s

motions

for

summary

judgment.
Plaintiff is unable to establish Mr. Laurent’s exposure to
asbestos or asbestos-containing products, so it is unnecessary
to

consider

whether

such

exposure

constituted

a

substantial

factor in his injury.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant GE’s Motion for Summary
Judgment

(Rec.

Doc.

87),

Defendant

CBS’s

Motion

for

Summary

Judgment (Rec. Doc. 88), and Defendant Foster Wheeler’s Motion
for Summary Judgment (Rec. Doc. 89) are GRANTED.

9

IT

IS

FURTHER

ORDERED

that

GE’s,

CBS’s,

and

Foster

Wheeler’s Motions for Leave to File Reply (Rec. Docs. 110, 111,
112) are DENIED as moot.
New Orleans, Louisiana this 9th day of September, 2015.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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